Citation Nr: 0526213
Decision Date: 09/23/05 Archive Date: 10/05/05
DOCKET NO. 02-02 621 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office in San
Juan, the Commonwealth of Puerto Rico
THE ISSUES
1. Entitlement to service connection for bilateral knee
conditions.
2. Entitlement to service connection for a right shoulder
disorder.
3. Entitlement to service connection for a left shoulder
disorder.
4. Entitlement to a disability rating in excess of 20
percent for gastroesophageal reflux disease (GERD).
5. Entitlement to a compensable evaluation for postoperative
residuals of meatotomy and circumcision for meatal stenosis
and bladder outlet obstruction.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Suzie S. Gaston, Counsel
INTRODUCTION
The veteran served on active duty from September 1979 to June
1995.
The issues of entitlement to service connection for right and
left shoulder problems, and service connection for joint
problems of the lower extremities were previously denied by
the Department of Veterans Affairs (VA) in a rating decision
of September 1996. The veteran did not appeal that
determination within one year of the notice thereof, and the
decision became final. 38 U.S.C.A. § 7105 (West 2002); 38
C.F.R. § 20.302 (2004).
This current matter comes before the Board of Veterans'
Appeals (hereinafter Board) on appeal from an October 2001
rating decision by the Regional Office (RO) in San Juan, the
Commonwealth of Puerto Rico. The veteran perfected a timely
appeal to that decision.
The Board notes that, while it is not made clear in the
record, it appears that the RO reopened the veteran's claims
of entitlement to service connection for right and left
shoulder problems, and service connection for joint problems
of the lower extremities and denied them on the merits.
However, the Board must initially determine whether new and
material evidence has been received regardless of the RO's
actions. Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir.
1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996).
The issue of entitlement to a rating in excess of 20 percent
for GERD is addressed in the REMAND portion of the decision
below, and is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will contact the veteran
if additional action is required on his part.
FINDINGS OF FACT
1. By a rating action in September 1996, the RO denied
service connection for a right shoulder disorder, a left
shoulder disorder, and a bilateral knee disorder; the veteran
did not appeal that determination, and it became final.
2. Evidence associated with the claims file since September
1996 is not duplicative or cumulative of evidence previously
before the RO, and is so significant that it must be
considered in order to fairly decide the merits of the claims
for service connection for a right shoulder disorder, a left
shoulder disorder and a bilateral knee disorder.
3. The probative and competent medical evidence of record
establishes that the veteran's right shoulder disorder is not
linked to service on any basis.
4. The probative and competent medical evidence of record
establishes that the veteran's left shoulder disorder is not
linked to service on any basis.
5. The competent and probative medical evidence of record
preponderates against a finding that any currently diagnosed
bilateral knee disorder is related to the veteran's period of
military service.
6. Urine leakage, awakening to void at least two times per
night, daytime voiding interval between 2 and 3 hours, a need
for dilatation every 2 to 3 months, or any other symptom
required for a compensable rating for urethral stricture is
not shown.
CONCLUSIONS OF LAW
1. The additional evidence presented since the September
1996 RO decision is new and material, and the claims for
service connection for a right shoulder disorder, a left
shoulder disorder, and a bilateral knee disorder have been
reopened. 38 U.S.C.A. §§ 5108, 7105 (c) (West 2002); 38
C.F.R. §§ 3.104(a), 3.156(a) (effective prior to August 29,
2001).
2. A right shoulder disorder was not incurred in or
aggravated by active service. 38 U.S.C.A. §§ 1101, 1110,
1131, 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R.
§§ 3.102, 3.159, 3.303 (2004).
3. A left shoulder disorder was not incurred in or
aggravated by active service. 38 U.S.C.A. §§ 1101, 1110,
1131, 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R.
§§ 3.102, 3.159, 3.303 (2004).
4. A bilateral knee disorder was not incurred in or
aggravated by active service. 38 U.S.C.A. §§ 1101, 1110,
1131, 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R.
§§ 3.102, 3.159, 3.303 (2004).
7. The criteria for a compensable rating for status post
meatotomy and circumcision for meatal stenosis and bladder
outlet obstruction are not met. 38 U.S.C.A. §§ 1155, 5103,
5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 4.115a,
4.115b, Diagnostic Code 7518 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. The Veterans Claims Assistance Act (VCAA)
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2004).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a)
(West 2002 & Supp. 2005); 38 C.F.R. § 3.159(b) (2004);
Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA
notice must inform the claimant of any information and
evidence not of record (1) that is necessary to substantiate
the claim; (2) that VA will seek to provide; (3) that the
claimant is expected to provide; and (4) must ask the
claimant to provide any evidence in her or his possession
that pertains to the claim in accordance with 38 C.F.R.
§ 3.159(b) (1). VCAA notice should be provided to a claimant
before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim. Pelegrini v.
Principi, 18 Vet. App. 112 (2004); see also Mayfield v.
Nicholson, 19 Vet. App. 103 (2005).
VA satisfied its duty to notify by means of a letter dated in
March 2001 from the agency of original jurisdiction (AOJ) to
the veteran that was issued prior to the initial AOJ
decision. Another letter was issued in February 2004. Those
letters informed the veteran of what evidence was required to
substantiate the claims and of his and VA's respective duties
for obtaining evidence. The veteran was also asked to submit
evidence and/or information in his possession to the AOJ.
In this case, all identified medical records relevant to the
issues on appeal have been requested or obtained. VA
provided the veteran with a medical examination in March
2004. The available medical evidence is sufficient for an
adequate determination of the veteran's claims. Therefore,
the Board finds the duty to assist and duty to notify
provisions of the VCAA have been fulfilled.
II. Pertinent Laws, Regulations, and Court Precedents.
In order to establish service connection for a claimed
disability, the facts, as shown by the evidence, must
demonstrate that a particular disease or injury resulting in
current disability was incurred during active service or, if
preexisting active service, was aggravated therein. 38
U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2004). When
a disease is first diagnosed after service, service
connection may nevertheless be established by evidence
demonstrating that the disease was in fact incurred during
the veteran's service, or by evidence that a presumption
period applied. 38 C.F.R. §§ 3.303, 3.307, 3.309 (2004).
Regulations also provide that service connection may be
granted for any disease diagnosed after discharge, when all
the evidence, including that pertinent to service,
establishes that the disease was incurred in service. 38
C.F.R. § 3.303(d) (2004).
A determination of service connection requires a finding of
the existence of a current disability and a determination of
a relationship between the disability and an injury or
disease incurred in service. Watson v. Brown, 4 Vet. App.
309, 314 (1993).
When the Board or the RO has disallowed a claim, it may not
thereafter be reopened unless new and material evidence is
submitted. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156
(2004).
New and material evidence means evidence not previously
submitted to agency decision makers which bears directly and
substantially upon the specific matter under consideration,
which is neither cumulative nor redundant, and which by
itself or in connection with evidence previously assembled is
so significant that it must be considered in order to fairly
decide the merits of the claim. 38 C.F.R. § 3.156(a) (2003);
see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).
The VCAA redefined the obligations of VA with respect to the
duty to assist, and imposed on VA certain notification
requirements. The final regulations implementing the VCAA
were published on August 29, 2001, and they apply to most
claims for benefits received by VA on or after November 9,
2000, as well as any claim not decided as of that date, such
as the one in the present case. 38 C.F.R. §§ 3.102,
3.156(a), 3.159 and 3.326(a).
The Board observes that the implementing regulations modify
the definition of new and material evidence and provide for
assistance to a claimant on claims to reopen. 38 C.F.R.
§§ 3.156(a), 3.159(c). However, the regulation provisions
affecting the adjudication of claims to reopen a finally
decided claim are applicable only to claims received on or
after August 29, 2001. 66 Fed. Reg. at 45,620. Because the
veteran's request to reopen the previously denied claims of
service connection for right and left shoulder disorders, and
a bilateral knee disorder, was received prior to that date,
in October 2000, those regulatory provisions do not apply.
In order to determine whether new and material evidence has
been presented, the Board looks to the last final
disallowance of this claim. The Board must look to the
evidence added to the record since the September 1996 final
decision. The evidence received after September 1996 is
presumed credible for the purposes of reopening the veteran's
claims unless it is inherently false or untrue, or it is
beyond the competence of the person making the assertion.
Duran v. Brown, 7 Vet. App. 216, 220 (1995); Justus v.
Principi, 3 Vet. App. 510, 513 (1992); see also Robinette v.
Brown, 8 Vet. App. 69, 75-76 (1995).
III. Factual background.
The record indicates that the veteran entered active duty in
April 1979. The service medical records show that the
veteran was diagnosed in February 1982 with condylomatous
acuminatum. In December 1983, he was diagnosed with
phimosis. During a periodic examination in December 1987,
the veteran complained of painful knee joints in wet and cold
weather; it was noted that he was one month status post
repair of phimosis and meatal stenosis. On the occasion of
his retirement examination in March 1995, the veteran
reported a history of persistent left and right shoulder
pain. It was noted that the veteran had swelling of the left
and right shoulder, as well as in the knee joints, after
exercise. It was also noted that the veteran had increased
joint pain and swelling in the lower extremities. It was
further noted that the veteran had a history of bladder
outlet obstruction for the past 10 years; he underwent a
cystourethroscopy, circumcision and meatotomy in November
1987, with a diagnosis of phimosis/meatal stricture. An
April 1995 consultation report noted a history of pain in
both shoulders with exercise.
By a rating action of September 1996, the RO granted service
connection for status post meatotomy and circumcision for
meatal stenosis and bladder outlet obstruction, evaluated as
0 percent effective July 1, 1995. That rating action denied
service connection for right and left shoulder problems (also
claimed as laxity and joint problems of the upper extremity),
and joint problems of the lower extremities (knees). The
veteran did not appeal that determination within one year of
the notice thereof, and the decision became final.
Medical evidence of record dated from March 2000 to March
2001, including VA and private treatment reports, show that
the veteran received clinical attention and treatment for
several disabilities, primarily a back disorder. During a
clinical visit in May 2000, it was noted that the veteran had
subjective bilateral lower extremity numbness. In March
2001, the veteran complained of occasional priapism. He
indicated that he had had episodes of difficulty emptying his
bladder which required straining. The veteran was seen in an
emergency room in May 2001, at which time he reported having
mild pain in the left shoulder for the last month; scapular
views revealed lesion highly suggestive of a bone island.
The veteran was afforded a VA genitourinary examination in
April 2001, at which time it was noted that the veteran was
diagnosed with a urinary obstruction while service in the
army; he was diagnosed with phimosis and meatal stenosis. A
circumcision and a meatotomy were done in 1989; since then,
he had had a slow urinary stream with frequency, perineal
pain, suprapubic pain, pain upon ejaculation and pain upon
urination with a slow stream and dribbling. The veteran also
reported urgency and hematuria. The veteran indicated that
he sometimes had urgency incontinence and he had to grab his
penis in order to hold the urine; and, after he urinates, he
had hematuria. There was no history of urinary tract
infection, renal colic or bladder stones, and no acute
nephritis. It was noted that the veteran had normal
erection, ejaculation and sensation, but he had extreme pain
upon ejaculation as well as history of hematuria. On
examination, the veteran was described as well developed,
well nourished, and in no acute distress. No fistula or
testicular atrophy was noted. A cystoscopy was reported as
normal; no urethral strictures were found. The pertinent
diagnosis was urethral stricture, by history; and, status
post meatotomy and circumcision.
The veteran was also afforded a joints examination in April
2001. It was noted that he went on sick call due to shoulder
laxity and pain; he also referred to two episodes of
dislocation that he closely reduced by himself. He indicated
that he never went to sick call due to the knee joints
condition; he noted that the lower extremity condition that
he was seeking related to his knees. The veteran reported
problems with night numbness of the shoulders and knees; he
was on medication for the knees and shoulder pain. He
reported no episodes of dislocation of the knees and
shoulders during the last year. No constitutional symptoms
for inflammatory arthritis. It was noted that the veteran
was unable to walk long distances as a result of his knees.
There was no objective evidence of painful motion, edema,
effusion, instability, weakness, tenderness, redness, heat,
abnormal movement, or guarding of movement of the shoulders
and knees. He had crepitus of the knees and shoulders.
Negative patellar grinding test bilaterally. The pertinent
diagnoses were osteodence lesion left glenoid rim could be
due to a calcification versus a bone lesion by x-rays of the
left shoulder; negative right shoulder joint examination on
the examination; and bone islands (benign bone process) of
the left glenoid rim by special scapula view left scapula.
Of record is the report of a Social Security Administration
(SSA) decision, dated in August 2002, which determined that
the veteran had been under a disability as defined by SSA
since December 2000. In that decision, it was determined
that the veteran was severely impaired by disorders of the
back and an affective disorder.
The veteran was afforded a VA joints examination in March
2004, at which time it was noted that the veteran went on
sick call on several occasions for complaints of bilateral
knee pain; he also referred to a motor vehicle accident with
trauma to the right knee treated with Motrin around the years
1984 to 1987. He also reported having gone on sick call for
bilateral shoulder pain after doing pushups; when he had the
accident in 1984 or 1987, he had the right shoulder trauma
and dislocation, which had required close reduction. The
veteran reported constant and severe bilateral shoulder pain
around the joints, more pronounced on the anterior aspect
with radiation to the anterior arms up to the dorsum of the
hands, associated with the crackling noise on the shoulders
with motion. He also reported a constant to moderate
localized knee pain inside the joints associated with
weakness of the knees and history of falls. He also had
difficulty extending the knees. The veteran reported being
on several medications for the pain. There was no history of
surgeries to the knees or shoulders. No episodes of
dislocation or recurrent subluxation of the knees or
shoulders.
Range of motion was 0 to 140 degrees in the right knee; the
left knee had a range of motion of 0 to 110 degrees. Range
of motion of the shoulders revealed an abduction of 130
degrees, flexion equaled 110, internal rotation was 50
degrees, and external rotation equaled 90 degrees. There was
painful motion on the last degrees of the range of motion.
The examiner noted that the veteran was additionally limited
by pain, fatigue, weakness, or lack of endurance following
repetitive use of the shoulders and knees. There was
tenderness to palpation on both shoulder bursa, bicipital
tendons and both knees infrapatellar bursa. He was able to
walk unaided with a slow gait. There was no ankylosis. X-
ray studies revealed normal examination of the shoulders;
and, no knee abnormalities were identified. The pertinent
diagnoses were bilateral shoulder adhesive capsulitis with
bursitis, bicipital tendonitis with rotator cuff tendonitis;
and, bilateral knee infrapatellar bursitis. The examiner
stated that the veteran's bilateral shoulder and knee
conditions were not at least as likely as not disabilities
that had their onset in service.
A genitourinary examination was also conducted in March 2004;
at that time, the veteran indicated that he had to sit to
void because of pain in the back. He reported a history of
erectile dysfunction for three years, and a diagnosis of
psychogenic impotence was entertained. It was noted that a
uroflow performed in September 2002 revealed no residue; a
bladder scan preformed in September 2002 was negative. The
veteran reported voiding every three to four hours; he voided
only once during the night. He was voiding well; he had a
good stream. The urine was clear, with some dysuria. It was
noted that the veteran had undergone several diagnostic
procedures, all of which had been negative. No incontinence
was reported. No urinary tract infections, no renal colic or
bladder stones, and no episodes of nephritis were noted. It
was noted that the veteran had not worked since 1989 as a
result of a back problem. The penis was reported to be
normal in size, with no deformities. The testicles were
normal, soft and movable. There was a cyst in the upper pole
of the right epididymis and there was a varicocele. No
fistula was noted. The pertinent diagnoses were urethral
meatal stricture, phimosis for which meatotomy and
circumcision was performed; meatal stricture was corrected.
The examiner noted that diabetes had been present for some
months, but the erectile dysfunction had been present for
about three years. The examiner further noted that the cyst
in the right epididymis and the varicocele were not related
to the veteran's urinary problems.
Received in December 2004 were numerous VA progress notes,
dated from October 2000 to December 2004, which show that the
veteran continued to receive clinical attention and treatment
for several disabilities, including the claimed bilateral
shoulder and knee problems. In July 2002, the veteran was
seen for complaints of dysuria and weak urinary stream for
about 2 weeks; no pertinent diagnosis was noted. When seen
in November 2004, it was noted that the veteran had bilateral
shoulder pain with dizziness and neurological symptoms.
IV. Legal analysis-New and Material evidence.
In this case, as previously noted, the RO denied service
connection for right and left shoulder disorders, as well as
joint problems of the lower extremities in September 1996.
At that time, the denial was based on a finding that while
there was a record of treatment in service for right and left
shoulder problems, and joint problems of the lower
extremities, no permanent residual or chronic disability
subject to service connection was shown by service medical
records or demonstrated by the evidence following service.
The evidence added to the record since the September 1996
decision includes VA examination reports, dated in April
2001, reflecting a finding of bone islands of the left
scapula (shoulder). These records also include VA
examination report, dated in March 2004, reflecting diagnoses
of bilateral shoulder adhesive capsulitis with bursitis
bicipital tendonitis with rotator cuff tendonitis, and
bilateral knee infrapatellar bursitis. This evidence was not
previously of record, and is not cumulative or duplicative of
evidence before the RO in September 1996. Hence, the
evidence is "new" within the meaning of 38 C.F.R. § 3.156.
Moreover, as this evidence establishes definite diagnoses of
right and left shoulder disorders, as well as a bilateral
knee condition, not shown in September 1996, the Board finds
that the evidence is "material" -- that is, it is so
significant that it must considered to fairly decide the
merits of the claim for service connection. While the Board
notes that the evidence does not clearly attribute the
disability to any in-service event, the Board notes that, to
support a reopening, the evidence the evidence need only, at
a minimum, "contribute to a more complete picture of the
circumstances surrounding the origin of the veteran's injury
or disability," even where it will not eventually convince VA
to alter its decision. See Hodge, 155 F.3d at 1363; 38
C.F.R. § 3.156. The Board finds that the above-described
evidence meets that standard, in the instant case.
As new and material evidence has been received, the criteria
for reopening the claims for service connection for a right
and left shoulder disorder, and a bilateral knee disorder,
have been met, and consideration of the claims for service
connection on the merits is warranted.
V. Legal analysis -- service connection.
In order to establish service connection for a claimed
disability the facts must demonstrate that a disease or
injury resulting in current disability was incurred in active
military service or, if pre-existing active service, was
aggravated therein. 38 U.S.C.A. § 1110 (West 2002); 38
C.F.R. § 3.303 (2004).
Where there is a chronic disease shown as such in service or
within the presumptive period under § 3.307 so as to permit a
finding of service connection, subsequent manifestations of
the same chronic disease at any later date, however remote,
are service connected, unless clearly attributable to
intercurrent causes. 38 C.F.R. § 3.303(b) (2004). This does
not mean that any manifestation in service will permit
service connection. To show chronic disease in service there
is required a combination of manifestations sufficient to
identify the disease entity, and sufficient observation to
establish chronicity at the time, as distinguished from
merely isolated findings or a diagnosis including the word
"chronic." When the disease identity is established, there is
no requirement of evidentiary showing of continuity. When
the fact of chronicity in service is not adequately
supported, then a showing of continuity after discharge is
required to support the claim. 38 C.F.R. § 3.303(b) (2004).
Regulations also provide that service connection may be
granted for a disability diagnosed after discharge, when all
the evidence, including that pertinent to service,
establishes that the disability is due to disease or injury
which was incurred in or aggravated by service. 38 C.F.R.
§ 3.303(d) (2004).
The United States Court of Appeals for Veterans Claims
(Court) has held that, in order to prevail on the issue of
service connection, there must be medical evidence of a (1)
current disability; (2) medical, or in certain circumstances,
lay evidence of in-service incurrence or aggravation of a
disease or injury; and (3) medical evidence of a nexus or
link between the in-service disease or injury and the current
disability. Hickson v. West, 12 Vet. App. 247, 253 (1999);
Pond v. West, 12 Vet. App. 341, 346 (1999).
Where the determinative issue involves a diagnosis or, say, a
nexus to service, competent medical evidence is required. So
this evidentiary burden typically cannot be met simply by lay
testimony because lay persons are not competent to offer
medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492,
494-95 (1992). When all the evidence is assembled, VA is
responsible for determining whether the evidence supports the
claim or is in relative equipoise, with the veteran
prevailing in either event, or whether a preponderance of the
evidence is against a claim, in which case, the claim is
denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
While the veteran contends that his bilateral shoulder and
knee problems developed as a result of military service, and
he has had problems with joint pain ever since his discharge
from service, he is a lay person and his opinion is not
competent to provide the nexus between his current disability
and service. See Espiritu v. Derwinski, 2 Vet. App. 492,
494-95 (1992).
Of significance is the March 2004 VA medical examiner's
examination and opinion that the veteran's bilateral shoulder
and knee conditions were not at least as likely as not
disabilities that had their onset in service. This opinion
was reached after a review of the veteran's medical records
and a thorough examination of the veteran. Rationale was
provided. This medical evidence is contrary to the veteran's
claim, and stands unrefuted in the record. The evidence is
of great probative significance in this case.
The Court has held that to establish service connection for a
disability, the evidence must show (1) the existence of a
current disability; (2) the existence of a disease or injury
in service and, (3) a relationship or nexus between the
current disability and any injury or disease during service.
Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau v.
Derwinski, 2 Vet. App. 141 (1992); see also Hickson v. West,
12 Vet. App. 247, 253 (1999) ("In order to prevail on the
issue of service connection . . . there must be medical
evidence of a current disability [citation omitted]; medical
or, in certain circumstances, lay evidence of in-service
incurrence or aggravation of a disease or injury; and medical
evidence of a nexus between the claimed in-service disease or
injury and the present disease or injury."). These
requirements have not been met in this case.
In sum, the Board is left with a single competent opinion as
to the etiology of the current bilateral shoulder and
bilateral knee disorders. That opinion is against the
veteran's claims. Therefore, the Board finds that service
connection for the conditions of right and left shoulder
disorder, and a bilateral knee disorder is not warranted. As
the preponderance of the evidence is against the claims, the
benefit of the doubt doctrine is not for application in the
instant case. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1
Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed.
Cir. 2001).
VI. Increased Rating for postoperative residuals of
meatotomy and circumcision for meatal stenosis and bladder
outlet obstruction.
The veteran's service-connected disorder is currently
evaluated as noncompensably disabling under Diagnostic Code
7518. Diagnostic Code 7518 states that stricture of the
urethra will be rated as a voiding dysfunction. 38 C.F.R.
§ 4.115b, Diagnostic Code 7518. Voiding dysfunction is
further classified as involving urine leakage, urinary
frequency, or obstructive voiding. 38 C.F.R. § 4.115a.
For urine leakage, 4.115a provides for a 20 percent
evaluation where the dysfunction requires the wearing of
absorbent materials which must be changed less than 2 times
per day. A 40 percent evaluation is warranted where there is
evidence of urine leakage, frequency, or obstructed voiding
that requires the wearing of absorbent materials which must
be changed two to four times a day. A maximum 60 percent
evaluation is warranted where urine leakage, frequency, or
obstructed voiding requires the use of an appliance or the
wearing of absorbent material that must be changed more than
four times a day.
Section 4.115a provides for a 10 percent evaluation where
urinary frequency requires daytime voiding at intervals
between two and three hours or awakening to void two times
per night. A 20 percent evaluation is warranted where
urinary frequency requires daytime voiding at intervals
between one and two hours or awakening to void three to four
times per night. A maximum 40 percent evaluation is
warranted where urinary frequency requires daytime voiding at
an interval of less than one hour or awakening to void five
or more times a night.
For obstructed voiding, § 4.115a provides for a 30 percent
evaluation for urinary retention requiring intermittent or
continuous catheterization. A 10 percent evaluation is
assigned for marked obstructive symptomatology (hesitancy,
slow or weak stream, decreased force of stream) with any one
or combination of the following: Post void residuals greater
than 150 cc; Uroflowmetry; markedly diminished peak flow
rate (less than 10 cc/sec); Recurrent urinary tract
infections secondary to obstruction; Stricture disease
requiring periodic dilatation every 2 to 3 months.
Obstructive symptomatology with or without stricture disease
requiring dilatation 1 to 2 times per year is noncompensable.
Comparing the findings reported in the March 2004 VA
genitourinary examination with the criteria of the rating
schedule, the Board finds that the criteria for a compensable
rating are not met. Significantly, the Board notes that
urine leakage, awakening to void two time per night,
dilations every 2 to 3 months, or any other symptom that
warrants a 10 percent rating simply is not shown. The March
2004 VA examiner noted that the veteran reported voiding
well, had a good stream, and his urine was clear. And, he
had undergone several diagnostic procedures, all of which
were negative. It was also noted that the veteran had normal
male genitalia with no gross deformities. The examiner
further noted that while there was a cyst in the right
epididymis in the upper pole and a varicocele, this was not
related to his urinary problems.
Thus, the weight of the credible evidence demonstrates that
the veteran's postoperative residuals of meatotomy and
circumcision for meatal stenosis and bladder outlet
obstruction is noncompensable. As the preponderance of the
evidence is against the claim for an increased rating for the
condition, the benefit-of-the-doubt rule does not apply, and
the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
ORDER
Service connection for a right shoulder is denied.
Service connection for a left shoulder is denied.
Service connection for a bilateral knee disorder is denied.
Entitlement to a compensable evaluation for postoperative
residuals of meatotomy and circumcision for meatal stenosis
and bladder outlet obstruction is denied.
REMAND
As noted above, the VCAA requires that VA must provide notice
that informs the claimant (1) of the information and evidence
not of record that is necessary to substantiate the claim,
(2) of the information and evidence that VA will seek to
provide, and (3) of the information and evidence that the
claimant is expected to provide. Furthermore, VA must "also
request that the claimant provide any evidence in the
claimant's possession that pertains to the claim." 38
U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1).
The veteran essentially contends that his service-connected
GERD is more severe than reflected by the 20 percent rating
currently assigned. It is maintained that the assigned
rating does not sufficiently reflect the severity of his
symptoms. The veteran maintains that he currently suffers
from frequent nausea, heartburn, diarrhea, and loss of
appetite.
After examining the record, the Board concludes that further
assistance to the veteran is required in order to comply with
the duty to assist as mandated by 38 U.S.C.A. § 5103A.
The veteran's residuals of a subtotal gastrectomy and
bilateral vagotomy is currently rated as 20 percent disabling
under 38 C.F.R. § 4.114, Diagnostic Code 7308 (2004), which
provides for postgastrectomy syndromes. Under this diagnostic
code, a 60 percent evaluation, the maximum available under
this code, is awarded for severe postgastrectomy syndromes,
associated with nausea, sweating, circulatory disturbances
after meals, diarrhea, hypoglycemic symptoms and weight loss
with malnutrition and anemia. A 40 percent evaluation is
warranted for moderate postgastrectomy syndromes,
characterized by less frequent episodes of epigastric
disorders with mild circulatory symptoms after meals but with
diarrhea and weight loss. A 20 percent evaluation is
warranted for mild postgastrectomy syndromes, characterized
by infrequent episodes of epigastric distress with
characteristic mild circulatory symptoms or continuous mild
manifestations.
Words such as "mild", "moderate" and "severe" are not defined
in the VA Schedule for Rating Disabilities. Rather than
applying a mechanical formula, the Board must evaluate all of
the evidence, to the end that its decisions are "equitable
and just." 38 C.F.R. § 4.6 (2004). The use of similar
terminology by medical professionals, although evidence to be
considered, is not dispositive of an issue. All evidence
must be evaluated in arriving at a decision regarding an
increased rating. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R.
§§ 4.2, 4.6 (2004). The Board observes in passing that
"moderate" is defined as "of average or medium quality,
amount, scope, range, etc." Webster's New World Dictionary,
Third College Edition (1988) at 871.
Upon review of the medical evidence of record, the Board
finds that it would be helpful in this case to afford the
veteran an additional VA examination for his service-
connected GERD. The Board observes that the veteran was
afforded VA examinations in March 2004 in connection with the
claims on appeal and that a report of these examinations is
associated with his claims file. Nevertheless, the VA
examination reports do not include sufficient data upon which
to evaluate the veteran's GERD. Accordingly, the Board finds
that this claim must be remanded for a more thorough
examination that takes into consideration the veteran's
contentions and the criteria contained in pertinent
diagnostic codes. See 38 U.S.C.A. § 5103A (West 2002); 38
C.F.R. § 3.159(c) (4) (2004).
To ensure that VA has met its duty to assist and to ensure
full compliance with due process requirements, the case is
REMANDED to the RO via the Appeals Management Center (AMC),
in Washington, D.C., for the following actions:
1. The AMC or RO should contact the
veteran and request that he identify all
VA and non-VA health care providers that
have treated him since April 2001 for any
gastrointestinal problems. The AMC or RO
should obtain records from all sources
identified by the veteran. Regardless of
the veteran's response, the AMC or RO
should obtain all outstanding VA
treatment reports.
2. The veteran should also be afforded a
gastrointestinal examination to determine
the severity of her service-connected
GERD. The claims folder must be made
available to the examining physician and
the physician should state that he/she
has reviewed the claims folder in the
report of examination. All tests and
studies deemed necessary by the examiner
should be performed. Where possible, the
examiner should provide medical findings
in terms consistent with the current
criteria for rating disorders of the
digestive system under 38 C.F.R. § 4.114,
DC 7308, 7346, and 7348. The examiner
should also describe any impairment of
health due to GERD as severe,
considerable, or less than considerable.
A complete rationale for each opinion
expressed must be provided. The report
of the examination should be associated
with the veteran's claims folder.
3. Thereafter, the AMC or RO should
readjudicate the veteran's claim for a
rating in excess of 20 percent for GERD.
The RO should consider the veteran's
claim under the rating criteria set forth
in 38 C.F.R. § 4.114, C 7308, 7346, and
7348. If the determination remains
adverse to the veteran, both she and her
representative should be furnished a
Supplemental Statement of the Case
(SSOC). The SSOC must contain notice of
all relevant actions taken on the claim
for benefits, to include a summary of the
evidence and applicable laws and
regulations considered pertinent to the
issues currently on appeal. An
appropriate period of time should be
allowed for response.
After the above actions have been accomplished, the case
should be returned to the Board for further appellate
consideration, if otherwise in order. The purposes of this
REMAND are to further develop the record and to accord the
veteran due process of law. By this REMAND, the Board does
not intimate any opinion as to the merits of the case, either
favorable or unfavorable, at this time. No action is
required of the veteran until he is notified.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38
U.S.C. §§ 5109B, 7112).
______________________________________________
Gary L. Gick
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs